Protecting the right to good governance

James Austin-Smith knows most people in the Cayman Islands will never have to fight for their right to a fair trial or freedom from torture.

But the chairman of the Human Rights Commission says there are some everyday rights, which people may not often think about, that they might want to pay closer attention to.

From planning and liquor board applications to requests for welfare assistance and business licenses, he said almost every seemingly mundane application to government engages the Bill of Rights.

Mr. Austin-Smith, who was reappointed last month as chairman of the commission for the next six months, said the commission is currently putting a particular focus on lawful administrative action – the responsibility of public boards, officials and government bodies to make fair and equitable decisions within a reasonable time frame.

“When you look at the big ticket rights in the constitution – fair trial, torture, any of those sort of big issues – they are vital but it is not very often that they are engaged,” he told the Cayman Compass in an interview.

“I think there is a good understanding of those rights, but if you look at things like lawful administrative action, freedom of expression, right to property, the duty of public officials, those things are almost more important on a day-to-day basis.”

While other issues appear more glamorous, he said the right to swift and fair decision making from public officials is an area where the human rights of Cayman residents are most clearly impacted.

To that end, the commission is working on a handbook for boards and other public bodies, outlining their responsibilities when it comes to dealing with applications from the public.

“The key word is fair, you have to make a decision in accordance with the law, in a reasonable time, based on principles of fairness and give reasons for your decision and have a functioning appeals process,” he said.

The Cayman Compass has highlighted in the past year multiple cases where officials have been accused of administrative unfairness, including:

The Liquor Board approved a gas station’s application to sell alcohol on Sundays, then reversed its decision and altered the minutes of its meeting

A dual iguana and lionfish culling business complained that it had been negotiating an opaque and seemingly endless regulatory process for more than a year in its efforts to get a business license

Multiple permanent residency candidates have complained that the failure to deal with their applications in a timely manner had left them in limbo.

Mr. Austin-Smith declined to comment in detail on specific cases, but said those were all instances where the right to lawful administrative action was engaged.

“We have been trying to do as much as we can working with government agencies, helping them to create policies and procedures so you can say if you come with an application, we will require you to present this information and we will come back to you within this period of time, with written responses and a clear right of appeal.

“That is all part of this culture of open government. Any decisions where discretion is afforded to a public official have to be handled carefully.”

He believes, in general, public officials are trying to do the right thing and in some cases actively seeking advice from the commission on how to create policies and procedures that meet this standard.

“It is a learning process for the public and a learning process for the public officials,” he said. “It is important for people to understand what their rights are under the constitution.”

The Human Rights Commission can only make recommendations and the ultimate sanction for anyone frustrated by a government decision, or the lack of one, is to go through the courts with a judicial review.

Mr. Austin-Smith was first appointed to the role in January 2015. His tenure officially ended at the end of last year, but was renewed on an interim basis.

He is ambivalent on the issue of whether he hopes to continue in the job beyond June 30.

“I am very proud of the work we have done while I have been chairman but it doesn’t hurt to mix things up a bit,” he said.

His stint as chairman has been controversial at times. Bodden Town legislator Anthony Eden openly called for him to be removed from the role in a speech in the Legislative Assembly saying, “We don’t need an atheist chairing our Human Rights Commission.”

He was reacting to Mr. Austin-Smith’s description of his earlier denunciation of same-sex partnerships as a “hate speech.”

The commission chairman holds no bitterness over the frank exchange of views.

“It is important if Anthony Eden or whomever doesn’t like what I say, they feel able to say it. We should be subject to criticism. Without that, the whole system falls apart,” he said.

On the underlying issue of same-sex partnerships, he believes the debate will only end one way – with the eventual legalization of domestic partnerships.

There is nothing in case precedent or in Cayman’s constitution that compels government to introduce same-sex marriage. But a case in Italy – known as the Oliari case – determined that signatories to the European Convention on Human Rights have to guarantee equal rights to same-sex couples.

Mr. Austin-Smith, said, “The U.K.’s position on that is that you have to afford people rights. You don’t have to call it marriage or force churches to do it, but you have to give people the right to enter into a legal union and to have the rights that derive from it; pension rights, property, inheritance, the right to discuss medical care in the case of an illness and so on.”

It took a court case to change things in Bermuda, another overseas territory with a large and vocal religious majority opposed to gay marriage. The territory was forced through a court judgment to register a gay marriage and later introduced a domestic partnerships bill that gave legal rights for same-sex unions.

Whether through proactive political action, a similar court challenge or an order from council in the U.K., Mr. Austin-Smith believes similar changes are inevitable in Cayman.

“The reality is that things do change with time. When I have had this conversation with Caymanians under the age of 40, this is largely not an issue for them; there are more pressing things the country has to worry about.

“When those younger people come into positions of responsibility in society and have a leadership role, then attitudes will shift. The other approach is that someone does take a more legalistic approach and the commission’s view is that they would definitely win.”